[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2964 Introduced in Senate (IS)]







108th CONGRESS
  2d Session
                                S. 2964

 To amend the Communications Act of 1934 to clarify and reaffirm State 
   and local authority to regulate the placement, construction, and 
 modification of personal wireless services facilities, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 8, 2004

  Mr. Leahy (for himself, Mr. Jeffords, and Mr. Dodd) introduced the 
 following bill; which was read twice and referred to the Committee on 
                 Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
 To amend the Communications Act of 1934 to clarify and reaffirm State 
   and local authority to regulate the placement, construction, and 
 modification of personal wireless services facilities, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Local Control of Cellular Towers 
Act''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress makes the following findings:
            (1) The placement, construction, and modification of 
        personal wireless services facilities (also known as wireless 
        facilities) near residential communities and facilities such as 
        schools can greatly reduce the value of residential properties, 
        destroy the views from properties, produce radio frequency 
        interference, raise concerns about potential long-term health 
        effects of such facilities, and reduce substantially the desire 
        to live in the areas of such facilities.
            (2) States and local governments have traditionally 
        regulated development and should be able to exercise control 
        over the placement, construction, and modification of wireless 
        facilities through the use of zoning and other land use 
        regulations relating to the protection of the environment, 
        public health and safety, and the general welfare of the 
        community and the public.
            (3) The Federal Communications Commission establishes 
        policies to govern interstate and international communications 
        by television, radio, wire, satellite, and cable. The 
        Commission ensures the compliance of such activities with a 
        variety of Federal laws, including the National Environmental 
        Policy Act of 1969 and the National Historic Preservation Act, 
        in its decision-making on such activities.
            (4) Under section 332(c)(7)(A) of the Communications Act of 
        1934 (47 U.S.C. 332(c)(7)(A)), the Commission defers to State 
        and local authorities that regulate the placement, 
        construction, and modification of wireless facilities through 
        the use of zoning and other land use regulations.
            (5) Alternative technologies for the placement, 
        construction, and modification of wireless facilities may meet 
        the needs of a wireless services provider in a less intrusive 
        manner than the technologies proposed by the wireless services 
        provider, including the use of small towers that do not require 
        blinking aircraft safety lights, break skylines, or protrude 
        above tree canopies.
            (6) It is in the interest of the Nation that the 
        requirements of the Commission with respect to the application 
        of State and local ordinances to the placement, construction 
        and modification of wireless facilities (for example WT Docket 
        No. 97-192, ET Docket No. 93-62, RM-8577, and FCC 97-303, 62 FR 
        47960) be modified so as--
                    (A) to permit State and local governments to 
                exercise their zoning and other land use authorities to 
                regulate the placement, construction, and modification 
                of such facilities; and
                    (B) to place the burden of proof in civil actions, 
                and in actions before the Commission and State and 
                local authorities relating to the placement, 
                construction, and modification of such facilities, on 
                the person that seeks to place, construct, or modify 
                such facilities.
            (7) PCS-Over-Cable, PCS-Over-Fiber Optic, and satellite 
        telecommunications systems, including Low-Earth Orbit 
        satellites, offer a significant opportunity to provide so-
        called ``911'' emergency telephone service throughout much of 
        the United States without unduly intruding into or effecting 
        the environment, public health and safety, and the general 
        welfare of the community and the public.
            (8) The Federal Aviation Administration must rely upon 
        State and local governments to regulate the placement, 
        construction, and modification of telecommunications facilities 
        near airports or high-volume air traffic areas such as 
        corridors of airspace or commonly used flyways. The proposed 
        rules of the Commission to preempt State and local zoning and 
        other land-use regulations for the siting of such facilities 
        will have a serious negative impact on aviation safety, airport 
        capacity and investment, the efficient use of navigable 
        airspace, public health and safety, and the general welfare of 
        the community and the public.
            (9) The telecommunications industry and its experts should 
        be expected to have access to the best and most recent 
        technical information and should therefore be held to the 
        highest standards in terms of their representations, 
        assertions, and promises to governmental authorities.
    (b) Purposes.--The purposes of this Act are as follows:
            (1) To repeal certain limitations on State and local 
        authority regarding the placement, construction, and 
        modification of personal wireless services facilities under 
        section 332(c)(7) of the Communications Act of 1934 (47 U.S.C. 
        332(c)(7)).
            (2) To permit State and local governments--
                    (A) to regulate the placement, construction, or 
                modification of personal wireless services facilities 
                with respect to their impacts on land use, including 
                radio frequency interference and radio frequency 
                radiation, in order to protect the environment, public 
                health and safety, and the general welfare of the 
                community and the public;
                    (B) to regulate the placement, construction, and 
                modification of personal wireless services facilities 
                so that they will not interfere with the safe and 
                efficient use of public airspace or otherwise 
                compromise or endanger the public health and safety and 
                the general welfare of the community and the public; 
                and
                    (C) to hold accountable applicants for permits for 
                the placement, construction, or modification of 
                personal wireless services facilities, and providers of 
                services using such facilities, for the truthfulness 
                and accuracy of representations and statements placed 
                in the record of hearings for permits, licenses, or 
                approvals for such facilities.

SEC. 3. STATE AND LOCAL AUTHORITY OVER PLACEMENT, CONSTRUCTION, AND 
              MODIFICATION OF PERSONAL WIRELESS SERVICES FACILITIES.

    (a) Limitations on State and Local Regulation of Facilities.--
Subparagraph (B) of section 332(c)(7) of the Communications Act of 1934 
(47 U.S.C. 332(c)(7)) is amended--
            (1) by striking clause (iv);
            (2) by redesignating clause (v) as clause (iv); and
            (3) in clause (iv), as so redesignated--
                    (A) in the first sentence, by striking ``may, 
                within 30 days'' and all that follows through the end 
                of the sentence and inserting ``may commence an action 
                in any court of competent jurisdiction. Such action 
                shall be commenced within 30 days after such action or 
                failure to act unless the State concerned has 
                established a different period for the commencement of 
                such action.''; and
                    (B) by striking the third sentence and inserting 
                the following: ``In any such action in which a person 
                seeking to place, construct, or modify a personal 
                wireless services facility is a party, such person 
                shall bear the burden of proof, regardless of who 
                commences such action.''.
    (b) Prohibition on Adoption of Rule Regarding Relief From State and 
Local Regulation of Facilities.--Notwithstanding any other provision of 
law, the Federal Communications Commission shall not adopt as a final 
rule or otherwise directly or indirectly implement any portion of the 
proposed rule set forth in ``Procedures for Reviewing Requests for 
Relief From State and Local Regulation Pursuant to Section 
332(c)(7)(B)(v) of the Communications Act of 1934'', WT Docket No. 97-
192, released August 25, 1997.
    (c) Authority Over Placement, Construction, and Modification of 
Facilities.--Such section 332(c)(7) is further amended--
            (1) by redesignating subparagraph (C) as subparagraph (D); 
        and
            (2) by inserting after subparagraph (B) the following new 
        subparagraph (C):
                    ``(C) Additional limitations.--
                            ``(i) Authority to require least intrusive 
                        facilities.--
                                    ``(I) In general.--A State or local 
                                government may deny an application to 
                                place, construct, or modify personal 
                                wireless services facilities on the 
                                basis that alternative technologies, 
                                delivery systems, or structures are 
                                capable of delivering a personal 
                                wireless services signal comparable to 
                                that proposed to be delivered by such 
                                facilities in a manner that is less 
                                intrusive to the community concerned 
                                than such facilities.
                                    ``(II) Considerations.--In 
                                determining under subclause (I) the 
                                intrusiveness of technologies, delivery 
                                systems, or structures for personal 
                                wireless services facilities, a State 
                                or local government may consider the 
                                aesthetics of such technologies, 
                                systems, or structures, the 
                                environmental impact of such 
                                technologies, systems, or structures, 
                                and the radio frequency interference or 
                                radiation emitted by such technologies, 
                                systems, or structures.
                                    ``(III) Burden of proof.--In any 
                                hearing for purposes of the exercise of 
                                the authority in subclause (I), the 
                                burden shall be on the applicant.
                            ``(ii) Radio interference.--A State or 
                        local government may regulate the location, 
                        height, or modification of personal wireless 
                        services facilities in order to address the 
                        effects of radio frequency interference caused 
                        by such facilities on local communities and the 
                        public.
                            ``(iii) Authority to require studies and 
                        documentation.--No provision of this Act may be 
                        interpreted to prohibit a State or local 
                        government from--
                                    ``(I) requiring a person seeking 
                                authority to place, construct, or 
                                modify personal wireless services 
                                facilities to produce--
                                            ``(aa) environmental, 
                                        biological, and health studies, 
                                        engineering reports, or other 
                                        documentation of the compliance 
                                        of such facilities with radio 
                                        frequency exposure limits, 
                                        radio frequency interference 
                                        impacts, and compliance with 
                                        applicable laws, rules, and 
                                        regulations governing the 
                                        effects of such facilities on 
                                        the environment, public health 
                                        and safety, and the general 
                                        welfare of the community and 
                                        the public; and
                                            ``(bb) documentation of the 
                                        compliance of such facilities 
                                        with applicable Federal, State, 
                                        and local aviation safety 
                                        standards or aviation 
                                        obstruction standards regarding 
                                        objects effecting navigable 
                                        airspace; or
                                    ``(II) refusing to grant authority 
                                to such person to place, construct, or 
                                modify such facilities within the 
                                jurisdiction of such government if such 
                                person fails to produce studies, 
                                reports, or documentation required 
                                under subclause (I).
                            ``(iv) Construction.--Nothing in this 
                        subparagraph may be construed to prohibit or 
                        otherwise limit the authority of a State or 
                        local government to ensure compliance with or 
                        otherwise enforce any statements, assertions, 
                        or representations filed or submitted by or on 
                        behalf of an applicant with the State or local 
                        government for authority to place, construct, 
                        or modify personal wireless services facilities 
                        within the jurisdiction of the State or local 
                        government.''.
                                 <all>